What is the basis for the commissioner to approve rules?
Under section 59(2) of the Public Service of Ontario Act, 2006 (the Act), the commissioner shall approve conflict of interest rules proposed by a public body if, in the commissioner’s opinion, the rules establish a degree of ethical conduct that is at least equivalent to that established by the conflict of interest rules in Ontario Regulation 381/07 (“Regulation”). The rules then replace the Regulation for that public body.
Do public bodies have to develop rules?
All public bodies are subject to the conflict of interest rules in the Regulation. These rules are intended to be broad enough to cover most situations of concern to all public servants, including public servants who work in or are appointed to a public body. Therefore, public bodies generally do not need to develop their own rules. In addition, a public body may develop interpretive or supporting documents to guide its employees and appointees in understanding and applying the rules in the Regulation, and these documents would not be approved by the commissioner.
When should a public body consider developing its own rules?
A public body may choose to develop its own rules if it wishes to establish a degree of ethical conduct for its employees and appointees that is beyond that which is established by the conflict of interest rules in the Regulation. These rules should include requirements for both current (in-service) and former (post-service) employees and appointees of the public body. To the extent possible, public body rules should follow the language of the Regulation.
Replicating the Regulation verbatim with only minor changes, such as inserting the actual name of the public body, is insufficient for commissioner approval. The Regulation applies to public bodies “with necessary modification”, which allows such minor contextual adjustments to be read in.
What should public body rules include?
Public body rules should mirror the conflict-of-interest rules in the Regulation but also extend or expand any substantive rule where the public body feels it needs to establish a higher degree of ethical conduct. For example, extending the “cooling-off” period for post-serve employment and lobbying restrictions beyond twelve months, or banning even nominal gifts or setting a dollar-value threshold for nominal gifts lower than what the commissioner has established.
What should public body rules not include?
Public body rules should not add definitions not contained in the Regulation, or extend definitions that are contained in the Regulation. This would constrain the commissioner’s interpretive latitude in applying the rules to a particular matter. An exception is clarifying who is considered to be in a “designated senior position”, as long as there is reasonable equivalency with how such positions are defined for ministries.
While a preamble or introduction or purpose statement is acceptable, public body rules should not contain interpretive or explanatory material or procedural requirements specific to the public body. Such material should be placed in an associated policy. Similarly, rules particular to a public body but not found in the Regulation should be contained in a separate policy.
Rules should not include matters extraneous to the regulation of ethical conduct, for instance rules on recordkeeping, security, human resource management, grievance procedure, monitoring and enforcement, etc. These matters go beyond the commissioner’s expertise and jurisdiction.
How does a public body start the process?
A public body wishing to develop conflict of interest rules should initially consult with the commissioner. If the public body chooses to proceed, it should submit its rules to the commissioner using the assessment form posted on the commissioner’s website. The rules and completed assessment form may be sent electronically to email@example.com.
What is the purpose of the assessment form?
The form assists the public body when developing rules and the commissioner when assessing proposed rules. It facilitates a comparison between the proposed rules and the standards of ethical conduct established by the Regulation. The form also requires a public body to clearly distinguish between proposed rules submitted for the commissioner’s approval and any other elements, such as procedural requirements, that do not need approval.
Is the public body consulted during the review of proposed rules?
The public body may be asked to provide additional information or clarification regarding the proposed rules. There may also be some discussion about necessary modifications to ensure consistency with the Regulation or the Act. The public body is notified of the outcome of the review.
When do approved rules take effect?
Approved rules take effect when they are published on the commissioner’s website. Prior to publication, the commissioner’s office arranges for the rules to be translated into French and made accessible for the visually impaired. The effective date is noted on the website. The commissioner notifies the public body upon approval of proposed rules and again upon their publication.